A federal judge has ordered the University of Oregon not to hide, mute or delete social media posts by a Portland State University professor even if they could be considered hateful, racist, offensive, out of context, off topic or irrelevant on the school’s equity X account, formerly Twitter.
U.S. District Judge Marco A. Hernandez issued the order Tuesday in professor Bruce Gilley’s 2-year-old case against the University of Oregon after Gilley got kicked off its diversity Twitter account for commenting on one of its posts.
Gilley has publicly criticized state efforts for inclusive educational curriculum as “identity politics” and has been highly critical of university diversity, equity and inclusion initiatives.
He sought a court order to bar the UO from blocking him from the diversity account in the future but Hernandez denied it.
Then the 9th U.S. Circuit Court of Appeals overturned Hernandez’s denial. A three-judge appellate panel , in a 2-1 vote in March, said that the UO hasn’t shown that it wouldn’t in the future remove Gilley’s posts.
Gilley had sued the University of Oregon and a former university employee after he was bumped from the school’s Division of Equity and Inclusion’s Twitter account following a comment he made on June 14, 2022.
Tova Stabin, who worked as a UO communications manager, blocked Gilley’s Twitter account after he retweeted and added a comment to an @UOEquity tweet that included a “racism interrupter” tool designed to help people respond to remarks they consider racist or offensive.
The @UOEquity tweet suggested people say: “It sounded like you just said ______. Is that really what you meant?”
Gilley, in his retweet, filled in the blank: “My entry:...you just said ‘all men are created equal.’”
On Tuesday, Hernandez wrote in his new ruling that if Gilley was blocked from the University of Oregon’s equity account for posting “all men are created equal” because the post was viewed as hateful, racist, or otherwise offensive, “such blocking would violate the Constitution. Deleting or hiding the post for that reason would also violate the Constitution.”
Hernandez wrote that his preliminary injunction is narrow and not likely to harm the University of Oregon.
The University of Oregon had argued against any preliminary injunction, contending much had changed in the past two years.
After Gilley filed his lawsuit, the university unblocked him and the university’s general counsel sent him a letter informing him that the school didn’t intend to block him in the future.
The person who had blocked Gilley’s account retired the day after Gilley filed his suit. The school hired a new communications manager for its equity and inclusion division, though she hasn’t started yet. The new manager will receive training on the school’s social media guidelines and monitoring its social media accounts, as well as the school’s bar on blocking or censoring any social media accounts based on viewpoints or protected speech, the university’s lawyer Misha Isaak argued.
The university also has adopted a new oversight system to ensure users “are not blocked for viewpoints they express,” making sure the communications manager can’t act alone to avoid the risk of a “rogue employee,” according to court records.
Hernandez said those changes don’t negate the need for an injunction. He said UO’s changes are new and some have not been put in place yet so their effectiveness is not yet known.
“The Court welcomes the efforts the University is making to ensure that First Amendment rights are upheld, but at this time Defendants have not made a strong enough showing of changed circumstances to justify departing from the Ninth Circuit’s conclusion that Plaintiff has shown irreparable harm,” Hernandez wrote.
While the injunction is in place, the judge put a hold on the lawsuit proceeding for 60 days while both sides said they would explore settlement talks.
Attorneys Endel Kolde, of the Washington, D.C.-based Institute for Free Speech, and D. Angus Lee, represent Gilley.
-- Maxine Bernstein covers federal court and criminal justice. Reach her at 503-221-8212, mbernstein@oregonian.com , follow her on X @maxoregonian, or on LinkedIn.
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